I am a senior editor at Forbes, covering legal affairs, corporate finance, macroeconomics and the occasional sailing story. I was the Southwest Bureau manager for Forbes in Houston from 1999 to 2003, when I returned home to Connecticut for a Knight fellowship at Yale Law School. Before that I worked for Bloomberg Business News in Houston and the late, great Dallas Times Herald and Houston Post. While I am a Chartered Financial Analyst and have a year of law school under my belt, most of what I know about financial journalism, I learned in Texas.

Supreme Court Unlikely To Deliver Gay-Marriage Mandate

The U.S. Supreme Court has agreed to hear a pair of cases that could — but likely will not — establish a nationwide, constitutional right to gay marriage. The cases leave the high court plenty of escape hatches from taking a big step the country may not be ready for yet, said William Eskridge, a constitutional law scholar at Yale Law School who contributed the legal reasoning that helped decide one of the cases, a challenge to an anti-gay marriage referendum in California.

The Supreme Court agreed to hear Hollingsworth v. Perry, the California case, as well as U.S. v. Windsor, a challenge to the federal Defense of Marriage Act. Both go to the core of one of the most divisive issues in American politics, the equivalent of interracial marriages in the 1950s. Very few people today would seriously support legal restrictions on a marriage between a white man and a black woman, but it wasn’t until the high court’s 1967 decision in Loving v. Virginiathat such laws were declared unconstitutional nationwide. Eskridge, whose scholarship has focused on how the Supreme Court adapts to mass political movements, thinks the country hasn’t yet reached a similar consensus on gay marriage.

“The Supreme Court would not have decided Loving in the 1950s,” he told me. “I would be very surprised if the court issues an opinion that spells the doom” of anti-gay marriage laws.

This may seem strange coming from the man who has supplied much of the legal reasoning undergirding the decisions that have supported gay rights, including 2003′s Lawrence v. Texas, invalidating state anti-sodomy statutes. But Eskridge teaches his students — I was one of them a decade ago — that the court responds slowly to broad social movements that implicate changes in civil rights. Only after Thurgood Marshall and his colleagues had pursued and won lawsuits challenging “separate but equal” school facilities in courts across the country was the Supreme Court willing to take the momentous step of declaring school segregation to be unconstitutional in Brown vs. Board of Educationin 1954. It took many years more for lower courts to enforce its provisions.

We’re at a similar point in the evolution of public thinking about gay marriage, Eskridge said. He described a recent luncheon meeting he attended in St. Louis where he asked some members of the audience how Missourians would respond to a Supreme Court ruling subjecting gay-marriage bans to the nearly insurmountable constitutional standard of strict scrutiny. “The guns would come out,” one attendee told him.

In Hollingsworth, the court will review a Ninth Circuit decision upholding a lower court’s invalidation of California’s Proposition 8 making same-sex marriages illegal. The lower court issued a broad ruling declaring the law, passed by statewide referendum, to be unconstitutional. The Ninth Circuit adopted Eskridge’s narrower reasoning that the referendum was invalid because it stripped a minority group — same-sex couples — of fundamental rights they had already possessed, albeit briefly, after some California cities started issuing marriage licenses.

The Supreme Court gave itself one out by asking lawyers to decide the question of Article III standing, or whether the plaintiffs challenging the Ninth Circuit even had the right to appeal. The plaintiffs are supporters of Prop. 8 but defenders of the ruling can argue they didn’t have a direct stake in the outcome and therefore can’t sue. If the court accepts that argument, it may send the case back to the district court for review and an uncertain future because the original court ruling technically only prevented certain state and local officials from enforcing Prop. 8. The high court also could agree with the Ninth Circuit’s reasoning — meaning only same-sex couples in California would maintain the right to marry.

In the DOMA case, the court also has asked both sides to answer the standing question. The Obama administration has refused to enforce the law, so there is a legal question whether having won a lower-court ruling declaring DOMA unconstitutional, it has standing to pursue an appeal. House Republicans, who are suing to overturn the lower court decision, would be subject to the same question.

As Lyle Denniston wrote on Scotusblog: “If the Court were to rule that the Court lacks jurisdiction, after finding that the Administration is not a proper one to appeal a ruling that it had won, that presumably would end that case.”

The liberal minority on the court may vote in favor of broad constitutional protection for same-sex couples, and Justice Anthony Kennedy may even join them. But Eskridge thinks the time isn’t right yet. While “there is a distinguished tradition” on the Court of overturning popular referendums that are discriminatory — including Romer v. Evans, in which Kennedy voted with the majority to strike down a Colorado state constitutional amendment prohibiting gay-rights laws — the court can also use these cases to delay a final decision on the constitutionality of gay marriage. Even Justice Ruth Bader Ginsburg has repeatedly stated that Roe v. Wade, the 1973 decision legalizing abortion, was decided too early.

“Justice Ginsburg built an entire career around going slowly on women’s rights,” said Eskridge.

On one question that has puzzled me, Eskridge had a direct and nearly irrefutable answer. What’s the big deal, I asked, about whether same-sex couples have the word “marriage” on a certificate if they can obtain civil unions that are identical in every other way? “Let’s engage in a thought experiment about Loving v. Virginia,” he said. “What if the Supreme Court had invented a new form of marriage for people of different races?” The rights would be identical, he said, only the state would provide a different certificate for white couples than it issued for couples of mixed races. The idea seems ridiculous now. Some day, perhaps, the same thinking will apply to same-sex marriage. It will probably take years, and a lot more litigation, to get there.

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Comments

Mr. Fisher, the Obama Administration IS enforcing DOMA: that’s why these lawsuits are happening! What they aren’t doing is defending DOMA in court, because they believe it to be blatantly unconstitutional.

Daniel, you came very close in this editorial! What if the government dropped the moniker of marriage license and issued civil union licenses to all single adults of any sex and any color? The civil union is simply a contract carrying all the rights and obligations of the former marriage license. The Churches, Temples, Mosques (i.e., religions) could each control issuing marriage documents. That way equal rights are afforded for all and marriage becomes an issue between the couple, their religion and their God. The churches could feel good about protecting the institution of marriage and all the rest of could feel good about protecting the rights of of citizens.

Congress could actually do this without help from a bunch of justices. It would only take lobbying from a lot of us people who are sick of discrimination and prosecution.

Good question. I believe most European countries do just this – one ceremony at city hall, another at the church. But I have been told marriage is inextricably bound up in civil government under our legal tradition and can’t be disentangled now.

I’m not sure there are any fundamental reasons why federal, state, and local laws (and corporate policies) couldn’t be revised to refer to civil unions and partners, rather than marriages and spouses. But it certainly would be much more efficient, effective, and expeditious to simply recognize the fact that civil marriage is distinct from religious marriage … and has been for a long time … and expand the definition of civil marriage.

Just because traditionally the churches issue marriage documents in the Western countries, it does not mean “marriage” is a sacred word that only belongs to churches. It is offensive to people from other countries such as China where marriage license is strictly issued by the government. Will you also force billions of Chinese couples to change their “marriage” into “civil union”?

Not all religions or temples get involved in marriage issues, at least not for Buddhism. If Catholics and Christians really want to force their values upon others, should muslim, buddhist and other religious people do the same thing to Catholics and Christians? Buddhists can insist that everyone be a vegetarian.

Califonia’s Proposition 8, as well as the Defense of Marriage prop that passed in Michigan, and others like these, all seem unconstitutional to anyone who wishes to have their rights protected. How can the constitution guarantee the rights to freedom of religion and freedom of association without guaranteeing the right to marry whomever one wants to? What does equal protection under the law really mean? Also, I disagree with the high court’s legalese that Americans are not ready for this…Oh yes we are!

You and I and many others may be ready. But there is merit to the argument that the court may not be prepared to overrule anti-gay laws that such a large portion of Americans still, regrettably, favor. When the SCOTUS overturned antimiscegenation laws and state constitutional provisions in 1967, popular will was overruled in only 16 states. Currently there are 41 states that prohibit same-gender marriage. Going all the way at this point would be a much more radical (though courageous) decision.